A Middlesex Superior Court judge says Framingham police went too far in their zeal to shut down a local head shop in July.
But while Justice Douglas Wilkins says he sympathizes with Terry Wilson, owner of the Grateful Head on Rte. 9, he declined to issue an order to force police to return most of her stuff, saying she needs to follow proper channels in her request, which in this case means first seeking relief in Framingham District Court - where police obtained their search warrant.
Wilson opened her shop this past spring, but not long after, Framingham Police told her she best be moving out of town because they considered her to be in the business of selling drug paraphernalia.
When she refused, police got a search warrant and raided the place on July 25 - after first sending a couple of informants into the shop to buy stuff. In addition to seizing glass pipes, synthetic marijuana, grinders and scales, police also seized T-shirts, posters, stickers, business cards for a medical-marijuana concern and the plastic gorilla, along with Wilson's business records.
Police then charged Wilson and two employees with selling unlawful drug paraphernalia and said the stuff they seized would be part of the case against them. The three face a hearing in Framingham District Court on Oct. 22.
In a ruling earlier this week, Wilkins said police went too far:
The plaintiff has a reasonable likelihood of showing that the seizure was overbroad in at least some respects. It is true that some of the seized items were very likely seized legitamately as evidence, instrumentalities of crime or contraband, but the plaintiff is likely to show that many other items were not. ...
Articles associated with medical marijuana or advocacy of decriminalization - or even less direct expressions associated with a "hippie" lifestyle, such as t-shirts or stickers - are not themselves drug paraphernalia and can hardly be viewed as inherently probative of criminal intent. ... After the legalization of medical marijuana, it may be telling that the police seized Cana Med business cards, which appear related to a medical marijuana venture and therefor to an activity that is not "in violation" [of current state law].
And just in case police assert that the posters and T-shirts are proof Wilson is giving pot smokers the tools they need to light up, he adds:
If such expressive items may be [proof of criminal intent], then one could argue that the police could seize recordings of many popular bands, classic rock (especially acid rock) and even LPs or CDs of Berlioz' Symphonie Fantastique, which portays in music the experience of hallucination under the influence of opium. Such an approach pushes the concept of relevance to the extreme.
In addition to the gorilla, Wilkins said the business cards, cigar wraps, stickers and butane should be returned, and that their original seizure could be a violation of the Constitution, which requires search warrants to be very specific in what can be seized as possible criminal evidence.